A Review Of Software Patent Issues

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Copyright (C) 2003 Russell McOrmond

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Executive Summary

Software patents are a recent addition to patent policy, with the United States being the first country to formally recognize them in a 1981 Supreme Court ruling. Interpreting the Committee Reports accompanying the 1952 Patent Act, this court ruling suggests that statutory subject matter can "include anything under the sun that is made by man."[2] This is the policy direction that the USA is aggressively pushing at the World Intellectual Property Organization (WIPO).

Patentable subject matter now includes new types of inventions that could not have been considered by parliaments when patent acts were drafted. As patent policy expands from manufacturing processes involving physical manipulations to those involving information processes, new issues arise. While a manufacturing processes may have high barriers to entry, software inventions can occur using computer equipment that is available in most homes and with a training level achievable by youth.

Software in the form of Free/Libre and Open Source Software (FLOSS)[3] is a clear demonstration that software innovation can flourish outside patent protection regimes for software. Free Software has its beginnings in the early 1970's, and was a response to attempts to centralize software innovation. Free Software can be seen because of the co-dependency that this development model has with the Internet. The movement away from centralized development models similar to those used in manufacturing is a deliberate move on the part of the Free Software development community, and is their answer to what was seen as a "software crisis"[4]. Secrecy is given up in favor of transparency . Software patents represent a barrier for a Free Software developer as they cannot honour both the Free Software criteria, as well as a software patent license, except in the case of a royalty free patent license.

Free Software represents only a small example of the issues with existing software patent policy. Often the techniques documented in successful patent applications would not have passed adequately rigorous tests for being useful, novel and unobvious. It has been suggested that possibly 60% of issued software patents in the USA are invalid[5].

The award of a patent can act as an economic incentive by protecting investments in technology development and providing the patent holder a short term monopoly. Yet the standard 20-year duration for patents is much too long for most if not all software innovations given typical technology development cycles for software. This problem is further compounded by software patent farming[6] over two decades by information technology multinational enterprises: this has a chilling effect on independent software developers by making them easy targets for costly software patent infringement lawsuits by the large players with rich patent portfolios and deep pockets.

1. Introduction

This report is divided into several major sections: a report on the current state of software patent policy, a list of outstanding issues and some suggestions for policy review.

A brief introduction to patent policy will be given to give context to this discussion.

1.1 Patent Policy

International and national patent laws use a few common criteria to restrict patentable subject matter:

It must be statutory, in that the subject matter should qualify as an invention according to the patent law in a country, including not being mentioned in any exceptions.

It must be useful, in that the invention should have industrial application. This is intended to exclude things such as perpetual motion machines.

It must be novel, in that it was not already invented by someone else, or otherwise already part of the state of the art.

It must be unobvious, in that the solution should not be obvious to someone skilled in that art.

As will be discussed later, it is often debated whether a majority of patents meet the four basic criteria.

2. Software Patent Policies In Different Legal Jurisdictions

The European Union and the United States represent the two jurisdictions with the most active discussions regarding patent policy.

2.1 United States

United States Code, Title 35[7] defines patents, with Chapter 10 defining patentability of inventions[8]. Rather than a list of exceptions as part of the definition of patents, case history is used to determine if a patent is statutory subject matter under section 101 of chapter 10[9]. Courts have been expanding statutory subject matter over time.

Prior to 1981, the United States Patent and Trademark Office (USPTO) routinely fought the issuance of software patents[10]. In both Gottschalk v. Benson[11] and Parker v. Flook[12] the Supreme Court suggested that "difficult questions of policy concerning the kinds of programs that may be appropriate for patent protection and the form and duration of such protection can be answered by Congress"[12].

In 1981, in the Diamond v. Diehr[2] case, the majority opinion of the court was that software which was used to control a physical process was patentable.

On the other hand, when a claim containing a mathematical formula implements or applies that formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e.g., transforming or reducing an article to a different state or thing), then the claim satisfies the requirements of §101. Because we do not view respondents' claims as an attempt to patent a mathematical formula, but rather to be drawn to an industrial process <450 U.S. 193> for the molding of rubber products, we affirm the judgment of the Court of Customs and Patent Appeals.15 <209 USPQ 11>

This ruling included an interpretation of the Committee Reports accompanying the 1952 Patent Act that suggested that the United States Congress intended statutory subject matter to "include anything under the sun that is made by man."[2]

In July 1998 the United States Court of Appeals for the Federal Circuit extended patentability to business method-related software in State Street Bank & Trust Co. v. Signature Financial Group[13]. This ruling indicated that the Supreme Court has identified three categories of subject matter that are unpatentable, namely "laws of nature, natural phenomena, and abstract ideas.", and went into detailed discussion about the "Mathematical Algorithm" exception. This included an extremely narrow interpretation of Gottschalk v. Benson and Parker v. Flook.

The US Patent and Trademark Office (USPTO) held hearings on patent policy in 1994[14]. Congress has not yet addressed this highly controversial topic.

2.2 European Union

The European Patent Convention article 52[15] excludes programs for computers, as reflected in the Examination Guidelines of 1978[16]. A more liberal set of patentability rules were developed by the European Patent Office (EPO)[17] after the publication of the revised Examination Guidelines in 1985[18]. The EPO has been interpreting the exclusion list in such a way that many software patents are being granted[17].

On March 4th 2003, the Competitiveness Council of Ministers reached agreement on a common political approach concerning the proposed Community Patent.[19] This proposal was not supported by parts of the European software community[20], largely because of a lack of trust for the EPO and their revised guidelines that ignore article 52 exclusions.

An alternative proposal to the ongoing liberalization of patentability in Europe was offered by the Foundation for a Free Information Infrastructure[18] that would limit patentability to technical inventions (problem solutions involving forces of nature).

2.3 World Intellectual Property Organization

The World Intellectual Property Organization (WIPO)[21] is a specialized agency of the United Nations that administers 23 international treaties dealing with different aspects of intellectual property protection[22]. There is an agreement on cooperation between WIPO and the WTO, specifically relating to the
TRIPS (trade-related aspects of intellectual property rights) agreement[23].

As with the European Union, current work within the Standing Committee on the Law of Patents (SCP) is on the harmonization of existing Patent Law[24]. The United States has been very aggressive in this agency, including going as far as to threaten to walk out of negotiations if the WIPO patent treaty does not adopt their very liberal interpretation of patent policy with few (if any) limits to patentable subject matter[25].

2.4 Canada

The Canadian Patent Act does not specifically mention software inventions. Section 2 of the Act defines an invention as follows:

"invention" means any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter;[26]

Subsection 27(8) of the Act defines what is not patentable as "No patent shall be granted for any mere scientific principle or abstract theorem."

The Canadian Intellectual Property Office (CIPO)[27] sets guidelines for patentability for Canadian patent examiners, and has indicated that software is patentable in Canada. Authority on any question of patent law must be found in the Patent Act, the Patent Rules[28], and in decisions of the Courts interpreting them.

CIPO is currently drafting a new chapter for the Manual of Patent Office Practice[29] that will include guidelines for the review of software inventions. Unfortunately it was not published in time for review and comment in this report.

The League for Programming Freedom quotes Canadian agencies as having some doubts in the 1970's about patent policy, including giving "serious consideration to the possibility of abandoning the continued maintenance of a patent system in any form"[30]. These quotes were from the Canadian Department of Consumer and Corporate Affairs which became part of Industry Canada in 1993[31], and the Economic Council of Canada which was disband the same year[32].

3. Overview Of Software Patent Issues

The topic of software patents is a very controversial one amongst software developers. Ironically many of the reasons given to not grant software patents are the same reasons that are given to grant them. This suggests that some public policy balance between competing interests is needed.

Consider the following from the BitLaw Internet site created by Daniel A. Tysver, a partner with the intellectual property law firm of Beck & Tysver[33].

The primary benefit of protecting computer software through the patent system is the strength of protection provided by the patent laws. An owner of a patent may prevent all others from making, using, or selling the patented invention. In connection with software, an issued patent may prevent others from utilizing a certain algorithm (such as the GIF image compression algorithm) without permission, or may prevent others from creating software programs that perform a function in a certain way (such as Compton's withdrawn patent that allegedly prevented all others from performing certain types of multimedia database queries).

...

In contrast, copyright law can only prevent the copying of a particular expression of an idea.

From this perspective, the creator of a piece of software who wants to extract as much wealth from his or her software as possible, a patent offers more value for existing investment than copyright.

Contrast the above perspective with the view from the League for Programming Freedom which is self-defined as "an organization that opposes software patents and user interface copyrights."[34]

Few programmers and entrepreneurs believe that patents are necessary for their profession. Instead, the impetus for patents on algorithms and techniques comes from two outside sources: managers of large companies, who see patents as a means for triumphing over their competitors without having to develop superior products, and patent attorneys, who see the potential for greatly expanding their business.

...

Today, most patenting by companies is done to have something to trade or as a defense against other patent-infringement suits. Attorneys advise that patenting software may strengthen competitive position. Although this approach will work for large companies such as Microsoft, Apple, and IBM, small and even mid-sized companies can't play in their league. A future startup will be forced to pay whatever price the giants choose to impose[35].

Rather than focusing on maximizing the rewards for previously authored software, those opposed to software patenting are more concerned with future software development. While large firms can afford a long and costly legal battle over a disputed patent claim, smaller organizations can not.

The issue is scope of protection that governments grant software. Is software granted enough protection when the expression of the single program is protected by copyright? Is there justification to increase the scope to include classes of compatible programs through copyright on software interfaces? Is there justification to protect certain algorithms or functionality with patents?

Software is eligible for both copyright and patent protection in some countries. In addition, through interface copyright, software copyright can protect much more than just the expression. Interface copyright can include monopolies on user interfaces, application program interfaces (APIs), as well as interfaces between software and hardware.

The European Union suggests that copyright on the single program is enough, rejecting interface copyright in their 1991 Directive on the legal protection of computer programs[36] and software patents in article 52[15] of the European patent convention. In the case of interface copyright, one of the justifications given within the directive is the promotion of international standardization, with over-protection of software reducing standardization.

Economic and market analysis is needed as there is a cost to over-protection as well as to under-protection of software. The analysis needs to revisit the purpose of the policy and ensure that public policy goals are being met with each type of work and/or invention protected by copyright and/or patent policy. Providing economic and market analysis is outside the scope of this report.

In his paper, "The New Case for Abolishing Software Patent", Tim Wu suggests that the scope of protection should be limited to only the expression of a single program and not to other works.

Recent experience with software patent has also made clear the advantage of copyright as a starting point for government protection of software, whatever the level of protection you think appropriate. Claim scope is the central economic issue in intellectual property protection; and clarity in the definition the scope of granted monopolies operates to the benefit of all. The uncertainty that surrounds the scope of patent software claims has, in the industry, made software patent into something of a federal lottery, indiscriminately distributing rights of unpredictable value. The nominal entry fee makes it irrational not to enter, but few companies could ever plan a business around it[37].

Interest in the patent system is moving into more mainstream view. Patent policy is being critiqued by America's consumer watchdog and past presidential candidate Ralph Nader in recent media interviews[38], and has been the subject of consumer boycott[39].

3.1 Software Innovation Without Patent Protection

Free Software[40], and closely related Open Source[41] software, illustrate that innovation can occur without software patent. Fundamental legal conflicts exist that prevent most software patent licenses from being concluded by someone using a Free Software copyright license.

An understanding of Free Software dynamics helps to understand market network effects in an Internet connected world[42]. While the recent rapid growth of Free Software can be attributed to the co-dependant growth of the Internet, Free Software pre-dates this growth[43].

* The freedom to study how the program works, and adapt it to your needs (freedom 1). Access to the source code is a precondition for this.

* The freedom to redistribute copies so you can help your neighbor (freedom 2).

* The freedom to improve the program, and release your improvements to the public, so that the whole community benefits (freedom 3). Access to the source code is a precondition for this.

A program is free software if users have all of these freedoms. Thus, you should be free to redistribute copies, either with or without modifications, either gratis or charging a fee for distribution, to anyone anywhere. Being free to do these things means (among other things) that you do not have to ask or pay for permission.

This means that a Free Software developer cannot honour both the Free Software criteria, as well as a software patent license, except in the case of a royalty free patent license.

Section 7, Paragraph 1 of the GNU General Public License[44] specifically clarifies the situation:

If, as a consequence of a court judgment or allegation of patent infringement or for any other reason (not limited to patent issues), conditions are imposed on you (whether by court order, agreement or otherwise) that contradict the conditions of this License, they do not excuse you from the conditions of this License. If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.

Legal counsel for the Free Software Foundation, Eben Moglen, suggests that the patent license must not contain field of use restrictions, since "everyone has to be allowed to take free code from one place and use it in another, or build on it, so long as she is willing to share and share alike."[45] Field of use restrictions were further discussed in the FSF submission to the proposed W3 Consortium "Royalty-Free" Patent Policy[46].

Beyond legal issues, Free Software offers policy makers alternative incentive models for software development. Free Software relies on copyright policy to enforce licenses which define software as Free Software, but do not rely on royalties of any type. Free Software developers write software to meet their own or customers needs, and operate more as a services industry than product-based manufacturing[47]. These developers consider the value of having existing software available to them to freely modify to suite new needs as incentive enough to join this 'copyright pool'[48].

The movement away from traditional centralized software development models similar to those used in manufacturing is a deliberate move on the part of the Free Software development community, and is their answer to what was seen as a "software crisis"[4]. Secrecy is given up in favour of transparency.

Patents are often described as a grant of a limited monopoly in exchange for an element of disclosure or public use. Free Software is an example of full disclosure of the software and source code with specific freedoms granted to all users of that software.

3.2 Software Patent Fair Use

Copyright law includes the concept of a fair use defense to address problems of market failure. In a recent Columbia Law Review article on the topic, Maureen A. O'Rourke suggests that a similar defense should exist for patents[49]. While her analysis included patents on interface standards, it did not include the special case of Free Software nor did it focus on Internet interface standards. It would be very informative to extend her work to include these cases, including evaluating if excluding Free Software constitutes an abuse of exclusive rights according to the Canadian Patent Act[50].

3.3 Statutory, Useful, Novel And Unobvious

In order for something to be eligible for a patent it needs to be statutory patentable subject matter, it must be useful (capable of industrial application), novel and be unobvious (involve an inventive step). Some of the debates around software patents involve these basic criteria.

3.3.1 Statutory

Many countries have a very limited number of exclusions, with most countries not allowing discoveries, scientific theories or mathematical methods. The European Patent Convention article 52[15] includes a much larger list of exclusions.

(a) discoveries, scientific theories and mathematical methods;

(b) aesthetic creations;

(c) schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;

(d) presentations of information.

Computer software is not excluded in most countries, and even the European Patent Office[17] has been interpreting the exclusion list in such a way that many software patents are being granted[51]. Unless new laws are passed in a country to specifically exclude software, and court cases are tried that confirm an interpretation of the law, software is assumed to be patentable subject matter.

3.3.2 Useful

The subject matter of a patent claim must be considered useful, with the intent being to avoid inventions such as a perpetual motion machine[52]. Much discussion exists whether, like pure mathematical algorithms, software should not qualify as useful, software being construed as an abstract idea. The examination guidelines for computer-related inventions of the US Patent and Trademark Office indicates that software does qualify as useful as long as the claimed subject matter provides some "practical benefit" in the "technological arts."[53]

The Foundation for a Free Information Infrastructure (FFII) suggests that patents should be limited to methods that "comprise the operation of equipment which serves to control forces of nature in an inventive way" and not "the mere operation of generic data processing equipment"[18]. This would allow hardware devices that contained software to be patentable, but not software that run on computers.

The useful test should also ask the question, "useful for whom?" This test should be used to determine whether the temporary monopoly is useful to the potential patent holder and also whether the granting of the patent is useful as a matter of public policy.

3.3.3 Novel

Patent applications are intended to include references to both patent and non-patent prior art. Software patent applications reference minimal non-patent prior art, with half of all US software patents offering no non-patent prior art[54].

This is surprising given that software has been discussed, developed and published for longer than software patents have been granted. Non-patent prior art includes the large library of publicly viewable Free Software source code. While this large library should be used by both filers and examiners of patent claims, whether Internet publishing qualifies as prior art is still an open question[55].

It is expensive to invalidate a patent in court. This forces small business and volunteer software developers to honour invalid patents. The filing of prior art for existing patents should be free and cause an automatic reexamination and possible invalidation of the patent.

While software innovation cycles are short, sometimes a matter of months, the standard 20-year duration of software patents is problematic[56].

While a publication grace period may be appropriate for subjects with longer development time than software, software patentability should be immediately barred upon publication of prior art. Some countries already have no grace period for publication[57].

Software may need to be subjected to a "state of the art" test. A technique which may appear novel or unobvious at one point of time can turn out to be easily developed independently by a researcher without knowledge of the patent. Students in universities could be given similar problems to test if they would come up with similar solutions.

There is some precedent in trademark law where an existing trademark may become a generic term, no longer eligible for trademark protection.

In Canada, for disputes that a technique is infringing a patent, it is assumed that the alleged infringer is using the patented method unless proof is offered to the contrary[58]. The burden of proof should be reversed so that it is the patent holder that must prove that an infringer is using the patented method.

3.3.4 Unobvious

Whether something is unobvious to someone skilled in the art appears to be a highly subjective test, and it appears that patent offices rarely, if ever, use this criteria. While patented inventions are to be documented such that someone skilled in the art can implement them, patent lawyers often use language that is not understood by persons skilled in the art.

A technique to adequately test obviousness that makes use of the skills of people outside patent offices is needed. Some variation of the "state of the art" test may be appropriate.

A commonly referenced example of an obvious patent is the Amazon 1-click method[60] which is an obvious derivative of existing shopping cart systems. The judge in the case against Barnes & Noble suggested a trivial work-around this patent, rendering the patent practically useless in its narrowness[61].

3.4 Software Patents As A Challenge For Standards Organizations

Software patents are a major problem for information technology standards organizations. A standard is most useful when the largest number of interoperable implementations exist and the standard gains utility through network effects. Patents on techniques used in standards can be used by their holders to effectively block prospective implementors of the standard.

Some software standards groups make use of Free Software reference implementations. The disclosure inherent in Free Software makes interoperability testing easier as it is possible for a third-party implementor to modify a copy of the reference implementation during testing.

The W3C[62] has been working on this issue since October 1999 when their Patent Policy Working Group was formed[63].

3.4.1 Patent Disclosure

Standards groups have had problems in the past where a proponent of a specific technique fails to disclose the fact that they are also a holder of a patent. Disclosure of the patent would happen only after the technique became part of a standard[6].

To deal with this issue, many standards groups have disclosure requirements. This is included in the W3C patent policy[64], and section 10[65] of RFC2026[66] which describes the Internet Standards Process for the IETF. The IETF also maintains a page on a website that includes all disclosed intellectual property notices[67] so that any such notices are available to all implementors.

3.4.2 RAND ("Reasonable and Non-Discriminatory") Licensing

An earlier W3C patent policy draft defined a RAND license to include licenses conditioned on payment of reasonable, non-discriminatory royalties or fees[68]. RAND licensing may be appropriate for hardware but may not be reasonable for software standards.

3.4.3 Royalty Free

Later versions of the W3C patent policy moved to a Royalty Free license policy[64]. Free Software developers are still waiting to confirm legal opinions on "field of use" restrictions such as included in subsection 3(3) of the current W3C patent policy[69].

4. Summary Of Issues And Recommendations

The following summarizes the issues and offers suggestions for policy review.

The principal rationale for the patent system is that it promotes technological innovation. This suggests that patent policy needs to be based on sound and specific economic reasoning for each type of patentable subject matter. A global assessment of the economic rationale for software patent protection is urgently called for given the speed at which the Internet compounds the network effects of both cummulative and sequential innovations in software.

Canada should seek economically sound patent policy in support of technological innovation worldwide. For now, it should call for the suspension of WTO and WIPO efforts toward the international harmonization of patent policy to patentable subject matter such as software, information process and business methods.

Industry Canada should evaluate whether the duration of a patent should be related to the specific subject matter; in the case of software, twenty years does not make much sense.

Industry Canada should seek to clarify statutory subject matter, and possibly exclusions for information process patents. Clarification on the interpretation of useful , novel , and unobvious should be added to the Patent Act.

CIPO should publish guidelines that describe rigorous tests for useful, novel, and unobvious.

CIPO needs to ensure non-patent prior art is evaluated with pending and existing patents. In the case of software, it should consider the entire Free Software library and allow the filing of prior art without fee.

CIPO should reject questionable software patent applications and leave the decision to the courts. It needs to be understood that it is better for a legitimate patent to temporarily be offered inadequate protection than to offer protection for an invalid patent which no one might be in a position to fight in court.

CIPO should create a state of the art test to deal with the fact that innovation in different subject matter happens at a difference pace.

In court, when there is a dispute that a technique is infringing a patent, it should be the patent holder that needs to prove that the patented technique was used. Currently the assumption is that the new product was produced by the patented process[58].

Fair use should become a recognized defense and codified in the Patent Act[49].

Footnotes And Endnotes

[1] Russell McOrmond of FLORA Community Consulting http://www.flora.ca/ is an Open Systems Internet Consultant who specializes in Free/Libre and Open Source Software (FLOSS)[3]. He believes that FLOSS and the Internet are co-dependent disruptive technologies that will continue to radically increase innovation in ICT worldwide. He has been involved in the Free Software movement since 1992, and started FLORA Community Consulting as a sole-proprietorship in 1995 to focus on these innovative disruptive technologies.

Through offering services to the government (directly or via a reseller/client), and through personal interest in public policy, he has gained experience into the interactions between FLOSS, the Internet, and related government public policy.

[3] Free/Libre and Open Source Software (FLOSS) is a term used in public policy circles to describe the important aspects of both Free Software[40] and Open Source Software[41]. See http://www.flora.ca/floss.shtml as an attempt to clarify the use of the term.

Instead of centralization in large programming teams, the Internet style used small distributed programming groups. Instead of process control and hierarchy, the Internet style used peer review and open standards. Most importantly, the Internet style abolished secrecy in favor of transparency and what came to be called "open source" code.

[5] Gregory Aharonian[71] wrote on an Internet mailing list that he believes that over 60% of the issues software patents issued by the United States patent office are invalid http://www.aful.org/wws/arc/patents/2003-01/msg00030.html. Individuals on all sides of the discussions of software patents tend to agree with the statistics that Gregory produces.

Whoever invents or discovers any new and useful process, machine manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

(A patent can be an "invention or discovery", it must be "new and useful", and can be any one of 4 categories of patentable subject matter: "process, machine manufacture, or composition of matter")

Report, 7th Session, WIPO Standing Committee on Patent Law, Geneva, 6-10 May 2002, adopted 25 November 2002 as document SCP/7/8; see paragraphs 159-173, especially the exchange between the European and U.S. delegations at 170-171; http://www.wipo.org/scp/en/documents/session_7/

[40] The term "Free Software" is defined by the Free Software Foundation (FSF) at http://www.fsf.org/philosophy/free-sw.html. Most importantly, "``Free software`` is a matter of liberty, not price. To understand the concept, you should think of ``free`` as in ``free speech,`` not as in ``free beer.``". See also "Open Source" [41] and FLOSS[3].

[42] The importance of Free Software to modern software development is outside the scope of this article, but can not be understated. It is hard to imagine the growth of the Internet without Free Software, nor can one imagine the growth of Free Software without the Internet. I am of the belief that Free Software and the Internet are two co-dependent transformative technologies that threaten to not only disrupt incumbent businesses, but also many incumbent business models.

[43] While the GNU Project was conceived in 1983, free software has a history from the early 1970's http://www.fsf.org/gnu/gnu-history.html. It is important to realize that free software pre-dates software patents in the United States by a decade (Diamond v. Diehr, 1981[2]).

[45] Eben Moglen, "Free Software Matters: Patently Controversial", 2001 http://moglen.law.columbia.edu/publications/lu-16.html (which notes that "We cannot just buy a patent license, because though free software isn't always free like free beer, it cannot exist at all unless it is free like free speech: everyone has to be allowed to take free code from one place and use it in another, or build on it, so long as she is willing to share and share alike.")

[48] Some of the reasons why a company may join a patent pool exists with Free Software. As an example, the price of entry into the GNU GPL[44] software pool is that any derivative works of the software must be distributed under the same licensing terms as the original. Unlike a patent pool, there is no mechanism to revoke software already licensed under the GPL and thus the GPL offers considerable market stability.

The preceding analysis identified five factors relevant to a fair use finding: (i) the nature of the advance represented by the infringement; (ii) the purpose of the infringing use; (iii) the nature and strength of the market failure that prevents a license from being concluded; (iv) the impact of the use on the patentee's incentives and overall social welfare; and (v) the nature of the patented work.

if, by reason of the refusal of the patentee to grant a licence or licences on reasonable terms, the trade or industry of Canada or the trade of any person or class of persons trading in Canada, or the establishment of any new trade or industry in Canada, is prejudiced, and it is in the public interest that a licence or licences should be granted;

[51] Proposal for a Directive on the patentability of computer-implemented inventions - frequently asked questions http://europa.eu.int/comm/internal_market/en/indprop/comp/02-32.htm.
"However, since the EPC came into force in 1978, more than 30,000 software-related patents have been granted, and a considerable body of case law on the subject has been built up by the appellate bodies of the European Patent Office (EPO) and the Member States' courts."

[55] WIPO Standing Committee on the Law of Patents (SCP)[24], Issues currently considered by the SCP, Disclosure of Technological Information on the Internet and its Impact on Patentability http://www.wipo.int/eng/document/scp_ce/index_4.htm (only deals with the question of harmonizing historical rules, rather than addressing the forward looking public policy question of whether Internet publishing should constitute "prior art", and/or define "whether such information has become state of the art, even if it was disclosed on the Internet for only a limited time".)

In an action for infringement of a patent granted for a process for obtaining a new product, any product that is the same as the new product shall, in the absence of proof to the contrary, be considered to have been produced by the patented process.

[71] Gregory Aharonian is a is a consultant to law firms and corporations, long term critic of the US patent office, and specializes in determining the invalidity or enforceability of issued patents. He hosts a website at http://www.bustpatents.com/ and publishes an Internet Patent News Service.